Prevention of Crime Act 1908: Preventive Detention
Sentence of 5-10 years in addition to the normal sentence
Used for offenders with 3 previous felony convictions since 16
Churchill (1910): the Act should only apply to offenders who are not “merely a nuisance but a serious danger to society”
Preventive detention no longer used for “mere pilfering”
Criminal Justice Act 1948: Preventive Detention
Sentence of 5-14 years instead of normal sentence (no longer in addition to)
Used for persistent offenders aged 30 or over
Included not only professional criminals but also those with persistent but relatively trivial records
Fell into disuse
Criminal Justice Act 1967: Extended Sentence
Courts can go beyond statutory maximum if necessary to protect the public, based on offender’s record
Was not significantly used, since many petty offenders fell within its scope
Criminal Justice Act 1991
General provision on persistent offenders but repealed in 1993
Gave vague allowances for a longer sentence for violent or sexual offenders if necessary to protect the public from serious harm
Criminal Justice Act 2003
Required proportionality in sentencing
Use of suspended sentences
IPP, life or extended sentences for dangerous offenders
Legal Aid, Sentencing and Punishment of Offenders Act 2012
Removed IPP
Several modifications to CJA 2003
Prior record should be irrelevant, all sentencing should be proportionate to the specific offence at hand
George Fletcher (1978): sentence should be measured by reference to the crime
Harmfulness and culpability of the current offence should determine the sentence
Taking previous sentences into account would be punishing them twice for the same offence
Based on just deserts principle: anything that takes into account other offences would seek to incapacitate and reduce risk rather than punish proportionately
Example: illegal parking
Barwick Lloyd Baker (1863): subsequent convictions should result in much harsher sentences, for the purposes of individual deterrence
“if you tell a man clearly what will be the punishment of a crime before he commits it, there can be no injustice in inflicting it”
ISSUE: does not account for the fact that some offences are more minor and due to weakness/poverty rather than wickedness so are not as easily deterred by stricter sentencing
Rationale: individual deterrence, incapacitation or individual prevention
ISSUES: doesn’t take into account the fact that most recidivists are petty offenders
Many may offend due to weakness/poverty rather than logical thinking
Other forms of punishment might be more effective in reducing crime
ISSUE: repeated imprisonment might be counter-productive
Statistics show that reconviction rates “increase sharply according to the number of previous convictions”
Possible that those with more convictions are habitual criminals who are likely to be reconvicted anyway?
Desensitize offenders to prison
Exposes them to influences which contribute to further offending
Dove-Wilson Committee (1932): cumulative principle may “cause progressive deterioration by habituating offenders to prison conditions which weaken rather than strengthen their characters”
First offenders should receive a reduction of sentence, which is gradually lost with subsequent offences
Differs from cumulative principle in that there is a (proportionate) limit for the maximum sentence
So repeat offending doesn’t function as an aggravating factor to increase the sentence beyond proportionality and just deserts
Andrew von Hirsch:
Initial discount is based on recognition of human fallibility
Subsequent loss of mitigation is due to offender’s failure to accept the second chance and respond sufficiently to censure
ISSUE: even a first offender might have planned the offence, so he would not be deserving of the automatic mitigating factor
ISSUE: recidivism may not be a result of rational choice (which could therefore take into account responses to censure) but other factors
E.g. associating with certain groups of people, drug use, personal circumstances
Desistance from crime might be a result of a positive change in circumstances rather than punishment
Council of Europe’s recommendations
Previous convictions should not “be used mechanically as a factor working against the defendant”
Even if criminal record considered, sentence should be proportionate to current offence
In practice: might be theoretically approved by the courts, but actual sentences are often disproportionate for repeat offenders (more akin to cumulative or flat-rate)
Offender with “appalling” criminal record sentenced for theft of nightdresses from shop and theft of cod fillets from hospital freezer
CA: reduced sentence from 3 and a half years to 18 months
Stocker LJ: “convicted criminal’s past record forms part of the matrix upon which he falls to be sentenced” but “the sentence imposed must be related to the gravity of the offences in relation to which it is imposed”
ISSUE (Ashworth): even though they recognised the need for proportionality, 15 months’ imprisonment for theft where the goods were recovered is still high
Courts claim to approve of this theory, but fail to actually apply it
Julian Roberts: repeat offenders are like those who plan their offence
Both are “worthy of a greater degree of moral reprobation to reflect their enhanced level of culpability” so a higher sentence would be proportionate
Unlike cumulative principle, the increase would not be exponential
The greatest increase should be “between a first offender and an individual with two priors”, with a proportionate ceiling
Youngjae Lee: formal censure from first conviction should create an “obligation on the offender to reflect on the...
Ambitious and intelligent students
choose Oxbridge Notes.
©2024 Oxbridge Notes. All right reserved.